Why the Supreme Court Thinks Strip Searches Are Constitutional

By Will Kryder

Albert
Florence wasn't driving the car when it was pulled over on May 3, 2005; his
wife April was. The officer asked the owner of the BMW to identify himself, and
when Florence obliged, he was taken under arrest. An erroneous warrant (later
attributed to a computing error) was the culprit. Florence was frustrated but wasn't
surprised by the mistake. As the lawyer charged with arguing his case, Tom
Goldstein, later deadpanned on The Daily Show,
he had been arrested for "being black."

But
what happened next would eventually take Florence all the way to the Supreme
Court. As Garrett Epps recounted in an Atlantic
post last October, Florence was hauled off to the local jail and, despite
having not committed a crime, strip searched -- twice. The second search,
conducted at "arm's length," required him to "open his mouth and lift his
tongue, lift his arms, rotate, and lift his genitals." After he was released --
he was held for six days without being charged -- he sued: first in district court, before a reversal at the appellate level led to the high court itself. As always with Supreme Court cases, Florence v. Board of Chosen Freeholders of the County of Burlington was an issue of constitutional interpretation. Specifically:

Whether the Fourth Amendment permits a
jail to conduct a suspicionless strip search of every individual arrested for
any minor offense no matter what the circumstances.

Dispassionately separating the authority of government from the sovereignty of the individual is, of course, a function of the Court, and in the recent health care
arguments, it delivered some of its most -- to borrow the phrasing of the New York Times -- "cerebral" considerations
on the theme. As Justice Anthony Kennedy mused:

Here the government is saying
that the Federal Government has a duty to tell the individual citizen that it
must act, and that is different from what we have in previous cases and that
changes the relationship of the Federal Government to the individual in the
very fundamental way.

Or as Justice Antonin Scalia lamented:

The federal government is not supposed to be a government
that has all powers; it's supposed to be a government of limited powers ... What
-- what is left? If the government can do this, what, what else can it not do?

Statements like these seemed to suggest the court could end up
voting down President Obama's signature legislative accomplishment to date. But
only a few days after conferring on health care, the judges issued their
opinion on Florence, 5-4 allowing
detention officers to strip-search for minor violations such as traffic stops
and failing to leash a dog. Justice Kennedy authored the majority opinion (Justices
Roberts, Scalia, Thomas and Alito -- broadly considered to be the conservative
wing -- joined in the decision). A broccoli mandate? Not in my America. Jay walking?
Drop those trousers.

The
proximity of the two cases only underscores the apparent contradiction in logic.
In a telephone conversation, University of Chicago Political Science Chair and Law Professor Bernard Harcourt addressed
the inconsistency head on. "I think it is
totally coherent in its paradoxical way -- but goes to the difference between
economic and political liberty."

Harcourt, who is the author of The
Illusion of Free Markets: Punishment and the Myth of Natural Order, calls it the "Great American Paradox" -- a constitutional duality
dating back to the 18th century, in which "they actually believed that you didn't
need a legislative branch, you only needed an executive branch. Because in
economics, any man-made law would actually get in the way of natural order ... because
there was natural law -- the markets -- that already governed people." In turn,
lawmakers hypothesized, "There was only one thing we need legislation for. And
that was criminal law. And you see it today."

As
Harcourt wrote after the decision, "Notice, of course,
the difference -- or paradox -- with last week's Supreme Court arguments about
economic liberty and the health care mandate. The American ideal of a hands-off
government seems to apply only in the context of economic liberty." Justice Kennedy's opinion in Florence concluded, "Courts must defer to the judgment of correctional
officials that the inspections served not only to discover but also to deter
the smuggling of weapons, drugs, and other prohibited items."

And why would correctional officials have reason to suspect
a worst-case scenario, even with the most innocuous infractions? "One of the terrorists involved in the September 11 attacks was
stopped and ticketed for speeding just two days before hijacking Flight 93."

It was in this
context -- invoking our most ignominious villains -- that the Court couched the unique
authority it would be granting corrections officers. For men: "Spreading and/or lifting his testicles to
expose the area behind them and bending over and/or spreading the cheeks of his
buttocks to expose his anus. For females, the procedures are similar except
females must, in addition, squat to expose the vagina."

Already
there is buzz in Washington that should the Affordable Care Act be struck down,
President Obama will base at least part of his reelection effort on "running
against the Court" - a theme he hinted at last week when he derisively referred
to the justices as "an unelected group of people" whose involvement could be
"unprecedented." But the mixed messages from the Court suggest that dressing its
justices in "left" and "right" robes oversimplifies the nature of the schism.

In
a somewhat poignant exchange during the ACA hearings, Solicitor General Donald Verrilli tried to establish a human connection to the case, arguing that "there will be millions of people with chronic conditions like
diabetes and heart disease, and as a result of the health care that they will
get, they will be unshackled from the disabilities that those diseases put on
them and have the opportunity to enjoy the blessings of liberty."

Paul Clement, arguing against
the individual mandate, had an arrow in his quiver. "I would respectfully
suggest," he said, "that it's a very funny conception of liberty that forces
somebody to purchase an insurance policy whether they want it or not."